Terms and Conditions of Supply and Service

Incorporation

These Terms and Conditions shall be incorporated into this contract for the provision of goods and services by the Supplier to the Client.

Parties

In these Terms and Conditions Supplier means Higher Orbit Pty Ltd trading as activIT systems of 190 Beringarra Avenue, Malaga in the State of Western Australia and its respective successors and permitted assigns. Client means the client whose details appear on this and subsequent documents, invoices or purchase orders as the case may be.

Payment

1. The Client shall pay the fees as set out in the invoice or the purchase order, as the case may be and
   1. in respect of the provision of goods, shall pay the fees prior to delivery of and installation of the goods and/or
   2. in the case of services, shall pay the fees within seven (7) days after the provision of a tax invoice for the services.
2. The Supplier shall be entitled to charge 15% per annum simple interest on all fees owed to it and not paid in full within the time prescribed by clause 3.1, and accruing from day to day until the fees are discharged in full.
3. The Client indemnifies the Supplier against all losses, liabilities and expenses (including legal and other expenses associated with collection of overdue invoices, on a full indemnity basis) which the Supplier incurs (directly or indirectly) as a result of a breach of this Agreement and shall pay the amount of those losses, liabilities and expenses on demand.
4. Where the Client is a company or a trust and in further consideration of the mutual terms and conditions arising under the provision of the goods and services, the directors and/or the trustees as the case may be by their request for the provision of the goods and/or services hereby guarantee the due and punctual payment of the fees to the Supplier as if the directors or trustees were a party hereto in lieu of the Client.  The Supplier shall have the right to call upon such directors or trustees to exercise their obligations to the Supplier as guarantor without the Supplier first having made claims upon the Client or exercising any and all rights that exist under this agreement or at law against the Client.

Refusal of Service

Should the Client fail to meet its Payment obligations under Section 3 within thirty (30) days of an invoice being sent to the Client, the Supplier may choose to suspend and/or refuse further service to the Client until all outstanding balances are paid in full.

Title

All goods that have been supplied by the Supplier to the Client shall remain the property of and title shall remain vested in the Supplier until all fees in respect of such goods have been paid in full by the Client to the Supplier.

Where required, goods will be registered on the Australian Government’s Personal Property and Securities Register.

Limitation of Liability

1. The Client acknowledges that the nature of services provided by the Supplier has inherent risks in the provision of hardware, software and the customizing of hardware and software for the purposes required by the Client.  Whilst all reasonable care is taken by the Supplier, the Supplier takes no responsibility for any defects in the hardware and software supplied and the rights of the Client shall be limited solely to the manufacturer’s warranties provided by the original manufacturer and/or supplier of the hardware and software.
2. In relation to transactions that are covered by Australian Consumer Law:
   1. The Supplier’s goods and services come with guarantees that cannot be excluded under the Australian Consumer Law.
   2. The Client is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage.  The Client is also entitled to have the goods repaired or replaced if goods fail to be of acceptable quality and the failure does not amount to a major failure.
   3. The Client is entitled to have the services provided again or have any defects remedied if the original services were not provided in a proper and workmanlike manner.  The Client is entitled to a refund for a major failure and compensation for any other reasonably foreseeable loss or damage.
   4. In addition to other rights and remedies of the Client under the Australian Consumer Law:
      1. the Supplier warrants its goods and services for the period of twelve (12) months after supply;
      2. the Client must seek a remedy under this warranty in writing to the Supplier within five (5) business days of the fault becoming apparent; and
      3. each party shall be responsible for their own costs associated with making a claim pursuant to this clause.
   5. Where the transaction is for the supply of goods or services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption, i.e. supply for business purposes, the Supplier’s liability is limited:
      1. in the case of the goods – to any one or more of the following at the Supplier’s option:
         1. the replacement of the goods or the supply of equivalent goods, or
         2. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
   6. in the case of services – to any one or both of the following:
      1. the supplying of the services again;
      2. the payment of the cost of having the services supplied again.
3. In relation to transactions that are not covered by the Australian Consumer Law:
   1. the Supplier does not give, and no person purporting to act with the authority of the Supplier has given, any condition, warranty or representation whatsoever in favour of the Client as to the condition or quality of the goods or the services.
   2. The limitation of liability in paragraph b v above applies to the supply of goods and/or services.
   3. The Supplier’s liability to the Client is also limited to the value of this contract in relation to compensation paid to the Client.
   4. The Supplier will not be liable for, and the Client releases and discharges the Supplier from, any loss or damage whatsoever and whenever caused to the Client or its agents or employees, in relation to, special, indirect or consequential damages, loss of profit, goodwill, revenue or loss of anticipated saving or loss, whether by way of death of, or injury to, any person of any nature or kind, accident or damage to property, delay, financial loss or otherwise, arising directly or indirectly from or incidental to a breakdown of, or defect in, the goods and/or the services or any accident to or involving the goods and/or the services (whether occasioned by the negligence of the Supplier or otherwise) or which may otherwise be suffered or sustained as a result of the goods and/or the services or as a result of a breach of the terms of this Agreement by it or as a result of a breach of duty of care or negligence arising at law.
4. The Client takes full responsibility for:
   1. determining that the goods and/or services are suitable for the purposes for which the goods and/or services are required; and
   2. carefully examining the goods for defects that a careful examination ought to reveal.
5. The Client shall appraise itself of any and all risks that arise from the use of computerized systems including those risks in the installation, operation and maintenance of hardware and software and their customizing.  The Supplier shall be under no obligation whatsoever to appraise the Client of the said risks and the Client waives and holds harmless the Supplier from any claims whatsoever, howsoever arising out of the failure of the Supplier to appraise in whole or in part the Client of such risks.
6. In the provision of support to the Client for installation, maintenance and repair the Client acknowledges that the Supplier may from time to time have limited resources to respond in a timely manner and address the Client’s needs during periods of high demand.  The Client waives and agrees to hold harmless the Supplier from and against any claims, demands, charges or expenses arising directly or indirectly from delay in the provision of services of whatsoever nature provided by the Supplier to the Client.

Time limit for claims

Any and all claims or demands made by the Client against the Supplier in respect of the provision of goods and services under this agreement, or at law, shall be made in writing within seven (7) days of delivery of the goods or services.  In the absence of such claim or demand having been made within the said period, the goods or services shall be deemed to have been delivered in accordance with the agreement and the Supplier shall be entitled, without deduction of any sort whatsoever to full payment of the fees.

Intellectual property

Unless otherwise agreed in writing:

1. all intellectual property rights arising in respect of the provision of services shall remain vested in the Supplier;
2. the Client shall have a perpetual licence to use the material in which intellectual property rights subsist for. Upon termination of this agreement such intellectual property rights shall remain vested in the Supplier.
3. the Suppler hereby grants to the Client a license to use the materials in which intellectual property rights subsist for the Client’s own intended use only;
4. the Client may not sub-license, copy, use or otherwise permit any third party to use or modify the materials in which intellectual property rights subsist, or part thereof, except and for the purpose of ongoing maintenance and support.

Force Majeure

Neither party will be liable to the other for the consequences of any delay or failure of its performance which are caused by any event beyond the first party’s reasonable control including, without limitation, acts of God, fire, flood, accident, terrorism, strike and riots or inability beyond the reasonable control of the Supplier due to interruptions with the power supply or inability to operate or interruption with means and modes of communication between the parties that would normally be availed of by the parties for the provision of the services and either party may terminate the agreement if such an event occurs and continues for a period of thirty (30) days or more.

Privacy policy

The Client acknowledges that the Supplier may have collected information of and concerning the Client to enable the Supplier to determine the needs of the Client and the delivery of the services.  The Supplier may hold and deal with such information of and concerning the Client in good faith and in accordance with such privacy policies adopted and applied by the Supplier from time to time.

Dispute resolution

1. A party claiming that a dispute has arisen under this agreement (“Dispute”) must notify the other party giving written details of the Dispute.  The parties agree to negotiate in good faith on a commercially realistic basis to resolve the Dispute and will refer the resolution of the Dispute to officers within each party who are authorized to hear the Dispute before commencing any legal proceedings in relation to the Dispute.
2. Any dispute which cannot be settled under clause 11.a within a reasonable time must be referred for determination by a person appointed for that purpose by the parties and failing agreement appointed by the President of the Institute of Arbitrators & Mediators Australia (Western Australian Division).
3. Any determination made under the above clause is binding on the parties and the Commercial Arbitration Act 1985 (WA) applies to the determination except to the extent otherwise agreed by the parties.

Accepting the Terms and Conditions

By engaging activIT systems, using our services, or purchasing products from us, you agree that you:

1. Understand all sections of this document
2. Understand that services, prices, and other details may change from time to time, with or without advanced notice to you or your Company
3. Agree to the Terms of Engagement included within this document
4. Are authorized by your Company to engage our services or purchase products from us

Should you have any queries please email info@aitsys.com.au or call us on 1300 228 480.